Legal experts question secrecy around Warsame case
by Elizabeth Stawicki, Minnesota Public Radio
February 9, 2004

A federal magistrate has ordered a man accused of providing support to the al-Qaida terrorist network to remain in jail because he's a flight risk. Mohamed Warsame appeared in federal court in Minneapolis Monday. Several constitutional scholars say the Warsame case is an example of post-9/11 court secrecy that's unprecedented in U.S. history.

Minneapolis, Minn. —
Mohamad Warsame pleaded not guilty to a charge he conspired to give material support to a foreign terrorist organization. Prosecutors argued in court that Warsame should stay in jail while awaiting trial because he's a flight risk.

For the first time in a case largely sealed from public view, federal authorities revealed some of the details behind Warsame's charges in arguing why Warsame should stay jailed until trial.

According to court documents, about four years ago Warsame became interested in "the utopian Muslim society created in Afghanistan." While his wife and child lived in Minneapolis, he travelled there with other young men on their way to jihad training camps. At the camps he received military training in weapons, tactics and martial arts. He also allegedly fought for the Taliban twice on the front lines.

The documents also say Warsame attended lectures and ate with Osama Bin Laden during the same time al-Qaeda attacked the U.S.S. Cole while anchored at a harbor in Yemen.

In early 2001, Warsame asked a senior Al-Qaeda official in Kandahar whether the organization would pay for Warsame's wife and daughter to join him in Afghanistan. The official reportedly said instead of bringing Warsame's family to Afghanistan, it would pay for Warsame to return home.

In addition, Warsame allegedly told an FBI special agent he maintained covert communications with persons he met at the training camps and wired them funds to a Pakistani bank account.

Warsame's attorney argued that he's concerned for his client's mental health, because Warsame has been held in solitary confinement without access to his family or religious materials. He told the court that Warsame has no prior record in Canada or the U.S., and should be freed on a personal bond with any restrictions the magistrate would set, including house arrest or wearing a monitoring device.

It's a pain in the neck to the government to have to make its case each time. But you know, democracy is a pain in the neck -- it takes time. It takes a lot longer than a dictatorship does to get things done.- Jane Kirtley, U of M's Silha Center for Media Ethics and Law

A spokesman for the Warsame family, Omar Jamal of the Somali Justice Center, said it's important to keep in mind Warsame is innocent until proven guilty.

"We don't have to lose the sight that this is an allegation from the government. This is subject to proof, burden of proof on the government side. This will be the thing in the court. This trial will go on very long period of time. And it's going to be the part of the government to prove that," says Jamal.

The judge has closed most of the court proceedings involving Warsame, and sealed most of his records.
Several constitutional scholars say the Warsame case is an example of post-9/11 court secrecy that's unprecedented in U.S. history.

Last December about a half dozen reporters stood outside a Minneapolis federal court hearing that -- according to the public record -- didn't exist. No name was listed on the public docket and federal authorities would not comment on the action behind closed doors.

But through a tip, reporters got wind of the hearing and its focus -- Mohammed Warsame, a Canadian of Somali descent. The judge sealed the hearing, so reporters crouched in front of the courtroom door, trying to get any tidbit of information by squinting through a narrow crack in the door.

This kind of blanket secrecy is normally not tolerated in the criminal justice system. Courts are presumed open as a constitutional safeguard for the person on trial and for the community's ability to hold the legal system accountable. While judges may occasionally close portions of hearings, it's rare they close a hearing or case in its entirety.

"The notion of secrecy in the context of a criminal trial in a federal court -- a general blanket of secrecy -- is really unprecedented," says Norman Abrams, dean of the UCLA Law School and a national authority on federal criminal law.

"The government ought to have adequate tools to deal with terrorism. It's a great threat to our society. At the same time, I think we have to be very careful that they don't overreach and begin to adopt practices that really change the basic nature of how we conduct our criminal processes," Abrams says.

The U.S. Supreme Court has ruled only the most compelling interest justifies secrecy. Since Sept. 11, 2001, the government has argued that terrorism is a compelling interest. A spokesperson for the U.S. Justice Department said the agency "had nothing to add" for this story.

New York criminal defense attorney Joshua Dratel represented a man convicted of conspiring to bomb U.S. embassies in Kenya and Tanzania. He says closing hearings and sealing records seriously impairs a defendant's right to a fair trial.

"The government has all this knowledge, and is able to go out and use all its resources, where the defendant is hamstrung," says Dratel. "And none of the people who may be able to help him know what's going on, and aren't allowed to know what's going on. And so he's basically alone with his lawyer and it's a very difficult situation to be in."

In addition to cases like Warsame, the government has used secrecy post-9/11 to detain aliens under immigration laws, move defendants into military jurisdictions and hold prisoners at Guantanamo Bay.

Jane Kirtley, who heads the University of Minnesota's Silha Center for Media Ethics and Law, says fighting terrorism and keeping courts open doesn't have to be an either/or proposition -- it just means more work.

"It's time consuming, it's a pain in the neck to the government to have to make its case each time. But you know, democracy is a pain in the neck -- it takes time. It takes a lot longer than a dictatorship does to get things done," says Kirtley.

Orrin Gross, a law professor and national security expert at the U of M, says the U.S. can learn from the U.K.'s experience. The British government suspended a defendant's right to remain silent, and said the order applied only to terrorism cases in Northern Ireland. Gross says six years later, Britain applied it to organized crime.

"There were a lot of people who objected to this and said, 'How can you? This is a violation of a fundamental right,'" says Gross. "Then the government said, 'You did not object when it was in Northern Ireland, and Northern Ireland is constitutionally part of the United Kingdom. You cannot object now.' And it did indeed pass, and is part of the criminal penal code of the United Kingdom."

Whether the government's actions are justified may become clear in the next few years, as challenges move up the chain of federal courts and ultimately to the U.S. Supreme Court.